Notice of Claim Requirement Under the Minnesota Municipal ...

William Mitchell Law Review

Volume 4 | Issue 1 Article 3

1978

Notice of Claim Requirement Under theMinnesota Municipal Tort Liability Act

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NOTICE OF CLAIM REQUIREMENT UNDER THEMINNESOTA MUNICIPAL TORT LIABILITY ACT

I. INTRODUCTION

The notice of claim requirement' of the Minnesota Municipal TortLiability Act 2 poses, with few exceptions,3 a significant hurdle for claim-ants seeking redress for injuries allegedly suffered through municipalnegligence.' The Act requires that notice be served upon the municipalgoverning body, as a condition precedent to suit, within 180 days of the

1. MINN. STAT. § 466.05(1) (1976) provides:Except as provided in subdivisions 2 and 3, every person who claims damagesfrom any municipality for or on account of any loss or injury within the scopeof section 466.02 [torts of municipalities and municipal employees] shall causeto be presented to the governing body of the municipality within 180 days afterthe alleged loss or injury is discovered a notice stating the time, place andcircumstances thereof, and the amount of compensation or other relief de-manded. Actual notice of sufficient facts to reasonably put the governing bodyof the municipality or its insurer on notice of a possible claim shall be construedto comply with the notice requirements of this section. Failure to state theamount of compensation or other relief demanded does not invalidate the no-tice; but in such case, the claimant shall furnish full information regarding thenature and extent of the injuries and damages within 15 days after demand bythe municipality. No action therefor shall be maintained unless such notice hasbeen given and unless the action is commenced within one year after suchnotice. The time for giving such notice does not include the time, not exceeding90 days, during which the person injured is incapacitated by the injury fromgiving the notice.

2. MINN. STAT. ch. 466 (1976).3. No notice is required for injuries from intentional torts or the use of motor vehicles

owned by a municipality or operated by its employees. MINN. STAT. § 466.05(2) (1976).Notice of a claim for wrongful death may be given within one year. Id. § 466.05(3) (1976).See also id. § 466.03 (exceptions to municipal tort liability). Prior to the adoption of theMunicipal Tort Liability Act, the Minnesota Supreme Court had held that notice needonly be given in cases involving negligence. See Hahn v. City of Ortonville, 238 Minn. 428,438, 57 N.W.2d 254, 262 (1953) (notice requirement not applicable to action againstmunicipal liquor store under Civil Damages Act). However, the validity of the Hahnholding is doubtful in light of the Municipal Tort Liability Act, which specifically appliesto all torts by municipalities or their employees or agents. See MINN. STAT. § 466.02 (1976).Moreover, it should be noted that since Hahn, the Minnesota Legislature has adopted anotice statute specifically applicable to dramshop actions against municipalities. MINN.STAT. § 340.951 (1976), as amended by Act of June 2, 1977, ch. 390, 1977 Minn. Laws 888.Unlike the general notice statute, however, the notice period is only 120 days. Id.

4. MINN. STAT. § 466.01(1) (1976) defines a municipality as "any . . . city, whetherorganized under home rule charter or otherwise, any county, town, public authority,public corporation, special district, school district, however organized, or other politicalsubdivision." Thus, for example, the Act applies to torts of a housing and redevelopmentauthority, McCaleb v. Jackson, - Minn. -, . 239 N.W.2d 187, 189 (1976), andto airport commissions, Sorenson v. Minneapolis-St. Paul Int'l Airports Comm'n, 289Minn. 207, 208-09, 183 N.W.2d 292, 294 (1971), but not to state universities, Walstad v.University of Minn. Hosps., 442 F.2d 634, 641-42 (8th Cir. 1971).

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et al.: Notice of Claim Requirement Under the Minnesota Municipal Tort Li

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WILLIAM MITCHELL LAW REVIEW

plaintiff's injury.5 Moreover, suit must be commenced within one yearof the date notice is given.' With the abolition of sovereign immunityin Minnesota,7 the notice requirement remains a last vestige of thetheory that governmental entities deserve special protection againstclaims arising from their torts. This Note first will examine the originsand rationales of the notice requirement.' Next, the various judicial andlegislative modifications of the requirement will be analyzed. Thesemodifications involve incapacitated claimants,9 estoppel and waiver,'othe doctrine of substantial compliance," and abolition of the require-ment on constitutional grounds. Finally, an amendment of the noticerequirement will be proposed which would preserve the protection thatnotice justifiably affords municipalities while relieving the inequitiesthat often result from a rigid application of the requirement. 3

II. HISTORICAL BACKGROUND

The doctrine of sovereign immunity, arising from feudal England,provided that the state was above the law and that only with its consentcould an action be maintained against it." This doctrine was first ap-plied to local units of government in the 1788 English case of Russell v.Men of Devon, 5 where suit was barred against an unincorporated countyso the public would not "suffer an inconvenience."' 6 From this some-what dubious beginning, the doctrine became firmly established in thiscountry in the nineteenth century7 and eventually was extended to

5. MINN. STAT. § 466.05(1) (1976).6. Id.7. See notes 24-29 infra and accompanying text.8. See notes 14-41 infra and accompanying text.9. See notes 47-57 infra and accompanying text.10. See notes 58-73 infra and accompanying text.11. See notes 74-106 infra and accompanying text.12. See notes 107-96 infra and accompanying text.13. See notes 197-204 infra and accompanying text.14. For a good discussion of the origins of sovereign immunity, see Muskopf v. Corning

Hosp. Dist., 55 Cal. 2d 211, 214 n.1, 359 P.2d 457, 458 n.1, 11 Cal. Rptr. 89, 90 n.1 (1961).15. 2 T.R. 667, 100 Eng. Rep. 359 (K.B. 1788).16. Id. at 673, 100 Eng. Rep. at 362. The court further observed that it is a principle of

law that no man can be responsible for an injury unless it is caused by his own act ordefault. Since the defendant was composed of a fluctuating number of inhabitants, thecourt concluded that new residents who might have moved in after an injury, but beforea judgment, would thus unlawfully have been liable for damages. Id. at 668, 100 Eng.Rep. at 360. Such reasoning has been characterized as "an anachronism without rationalbasis (that) has existed only by virtue of inertia," Muskopf v. Coming Hosp. Dist., 55Cal. 2d 211, 216, 359 P.2d 457, 460, 11 Cal. Rptr. 89, 92 (1961), and "unjust, unsupportedby any valid reason and [which] has no rightful place in modern day society," Molitorv. Kaneland Community Unit Dist., 18 II1. 2d 11, 25, 163 N.E.2d 89, 96 (1959).

17. After mentioning the doctrine as early as 1810, see Riddle v. Proprietors of the Locks& Canals, 7 Mass. 169, 187-88 (1810) (dicta), Massachusetts became the first Americanjurisdiction to recognize sovereign immunity. See Mower v. Leicaster, 9 Mass. 247 (1812).

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NOTICE OF CLAIM REQUIREMENT

include virtually all levels of local government."Although sovereign immunity was the general rule, it was subject to

both statutory and judicial exceptions" and notice of claim require-ments were enacted to apply when any of these exceptions were avail-able against a municipality.1 The first notice statute of statewide appli-cation in Minnesota was enacted in 1897.1 It contained a thirty-daynotice period and required that the action be commenced within oneyear after the injury.u The 1897 statute required that written notice beserved upon the municipal governing body and that it contain the time,place, and circumstances of the alleged injury and the amount of com-pensation or other relief sought.2

In Spanel v. Mounds View School District,' decided in 1962, theMinnesota Supreme Court prospectively abolished municipal tort im-munity and attacked headlong the doctrine's arbitrary distinctions,sparing only discretionary governmental activities and judicial, quasi-judicial, legislative, and quasi-legislative functions.2 The court notedthat comparable private institutions have suffered no undue hardshipsfrom exposure to tort liability and proposed that municipalities wouldlikewise be able to tolerate such liability." By announcing its intentionin Spanel to abolish municipal immunity in the future, the court invitedthe legislature to act and suggested several provisions that might be

Others gradually followed the Massachusetts lead. See, e.g., Dosdall v. County ofOlmsted, 30 Minn. 96,14 N.W. 458 (1882); Bailey v. Mayor of New York, 3 Hill 458 (N.Y.1842).

18. See, e.g., Bank v. Brainerd School Dist., 49 Minn. 106, 51 N.W. 814 (1892) (schooldistricts); Altnow v. Town of Sibley, 30 Minn. 186, 14 N.W. 877 (1883) (towns); Dosdallv. County of Olmsted, 30 Minn. 96, 14 N.W. 458 (1882) (counties).

19. See, e.g., Hahn v. City of Ortonville, 238 Minn. 428, 437-38, 57 N.W.2d 254, 261-62(1953) (municipal liquor stores subject to dramshop act); Smith v. City of Cloquet, 120Minn. 50, 139 N.W. 141 (1912) (city liable for injuries from undue accumulations of iceand snow on sidewalks); MINN. STAT. § 123.41 (1976) (school districts may waive immunityto the extent of permissible liability insurance). The largest exception was created by thedistinction between proprietary and governmental functions, whereby tort immunity pro-tected municipalities in the performance of governmental but not proprietary functions.See Peterson, Governmental Responsibility for Torts in Minnesota (pt. 1), 26 MINN. L.REv. 293, 295-96, 334-58 (1942).

20. See, e.g., Act of Mar. 2, 1885, ch. 7, § 19, 1885 Minn. Special Laws 74.21. Act of Apr. 23, 1897, ch. 248, § 1, 1897 Minn. Laws 459.22. Id.23. Id.24. 264 Minn. 279, 118 N.W.2d 795 (1962).25. Id. at 292-93, 118 N.W.2d at 803. See generally Note, The Discretionary Exception

and Municipal Tort Liability: A Reappraisal, 52 MINN. L. Ray. 1047 (1968).26. 264 Minn. at 291, 118 N.W.2d at 802-03.27. Id. at 281, 118 N.W.2d at 796. State tort immunity was prospectively abolished in

the same manner. See Neiting v. Blondell, - Minn. -, 235 N.W.2d 597 (1975). Aswith municipal liability, the Minnesota Legislature has acted to abolish certain stateimmunities in light of Neiting. See MINN. STAT. § 3.736 (1976).

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included in a tort liability law, including a notice requirement. 8 Thisinvitation was quickly accepted; in 1963 the Minnesota Municipal TortLiability Act was enacted.' The Act contained a thirty-day notice provi-sion, which survived until 1974 when it was increased to sixty days, 30 andthe present 180-day requirement was adopted in 1976.31

Under the present Minnesota notice statute, notice must include theplace, time, and circumstances of the injury, but defects in compensa-tion or other relief demanded may be corrected after notice is given.32

In addition, written notice is not required if the municipality obtainsactual notice of the injury within the notice period.13 Moreover, an ex-tension of up to ninety days is granted to claimants incapacitated bythe injury."

The Minnesota Supreme Court has enunciated at least four reasonsfor allowing municipalities to limit their tort liability through the noticerequirement. First, notice provides an opportunity to investigate claimswhile facts are fresh and witnesses readily available .3 Notice also pro-tects against stale or fraudulent claims and the connivance of publicofficials." The third reason is to enable the correction of deficient mu-nicipal facilities and functions before more people suffer injuries. 7 Fi-nally, notice affords an opportunity for negotiation and settlement with-out litigation." While these justifications have been endorsed by thecourts in Minnesota and elsewhere,3' legislative and judicial exceptionshave developed to mitigate the harshness of the notice requirement. 4" Inaddition, a small number of courts have taken a more drastic approachand have abolished their states' notice statutes on constitutionalgrounds." The following section will analyze these developments inmore detail.

28. 264 Minn. at 293, 118 N.W.2d at 804.29. Act of May 22, 1963, ch. 798, §§ 1-17, 1963 Minn. Laws 1396.30. Act of Mar. 28, 1974, ch. 311, § 1, 1974 Minn. Laws 518.31. Act of Apr. 13, 1976, ch. 264, § 4, 1976 Minn. Laws 969.32. MINN. STAT. § 466.05(1) (1976).33. Id.34. Id.35. E.g., Hirth v. Village of Long Prairie, 274 Minn. 76, 79, 143 N.W.2d 205, 207 (1966).36. Id. at 79, 143 N.W.2d at 208.37. Id. at 79, 143 N.W.2d at 207-08.38. Id. at 79, 143 N.W.2d at 207.39. See, e.g., Note, Notice of Claim Provisions: An Equal Protection Perspective, 60

CORNELL L. REV. 417, 422-23 (1975) (justifications for notice requirement have as theirunderlying basis the protection of the public coffers, with only an ancillary concern forpublic safety).

40. See notes 42-106 infra and accompanying text.41. See notes 107 & 115 infra.

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III. JUDICIAL AND LEGISLATIVE MODIFICATIONS OF THE NOTICE

REQUIREMENT

Historically, the Minnesota Supreme Court has given a strict con-struction to the notice requirement,'" leaving modification to the legisla-ture.'3 Thus, notice has been considered a condition precedent to suit"and plaintiffs have been denied recovery for mere technical violationsof the requirement.'5 Trivial noncompliance with the statute sometimeshas barred plaintiffs' claims despite bad faith or even fraudulent misre-presentation by the municipality." Interpretation of the notice statutehas not been uniformly strict, however. Exceptions for incapacitatedpersons, principles of waiver and estoppel, the substantial compliancedoctrine, and suggestions by the Minnesota court that it will hold thestatute unconstitutional cumulatively have eliminated much of theharshness inherent in the notice requirement.

A. Incapacity

Unduly severe consequences occur when a plaintiff is unable to give

42. See, e.g., Hampton v. City of Duluth, 140 Minn. 303, 305, 168 N.W. 20, 21 (1918)(description of place of accident 25 feet in error held an inaccurate description); Olcott v.City of St. Paul, 91 Minn. 207, 209-10, 97 N.W. 879, 880-81 (1904) (after proclaiming thatnotice statute should be construed with "reasonable liberality," a description in the noticeof the sidewalk as icy, smooth, and defective held insufficient when complaint also allegedthe defective character resulted from holes and decay of sidewalk); Doyle v. City ofDuluth, 74 Minn. 157, 161, 76 N.W. 1029, 1030 (1898) (notice void when served uponmayor rather than municipal governing body).

43. See, e.g., Jensen v. Downtown Auto Park, Inc., 289 Minn. 436, 438-39, 184 N.W.2d777, 778 (1971) (legislative acquiesence indicates approval); Olson v. City of Virginia, 211Minn. 64, 66, 300 N.W. 42, 43 (1941) ("matters concerning the hardship and injustice of[notice] legislation are for legislative and not judicial consideration").

44. See, e.g., White v. Johnson, 272 Minn. 363, 370, 137 N.W.2d 674, 679 (1965) ("Themore precise characterization of the notice requirement is that it is a condition precedentto bringing suit for the practical purpose of quickly informing a municipality of injuriesfor which it might be liable."); Freeman v. City of Minneapolis, 219 Minn. 202, 204, 17N.W.2d 364, 365 (1945) ("The statutt imposes a requirement as a condition precedent tobringing suit against a municipality by an injured party claiming damages for tortiousinjury that he first present a notice of claim in writing to the governing body of the city.");Szroka v. Northwestern Bell Tel. Co., 171 Minn. 57, 59, 213 N.W. 557, 558 (1927) ("Inmany cases it is said that the giving of notice is a condition precedent to a cause ofaction.").

45. See cases cited in note 42 supra.46. See, e.g., McGuire v. Hennessy, 292 Minn. 429, 431, 193 N.W.2d 313, 314 (1971)

(notice not effective until received by city council despite timely notice given to cityattorney who held it beyond notice period before giving it to city council); Hirth v. Villageof Long Prairie, 274 Minn. 76, 143 N.W.2d 205 (1966) (municipal hospital fraudulentlyconcealed fact that unauthorized treatment caused amputation of plaintiff's legs); John-son v. City of Chisholm, 222 Minn. 179, 185-86, 24 N.W.2d 232, 236 (1946) (city notestopped from asserting faulty notice defense despite misrepresentation by city officialsto plaintiff about necessity of filing notice).

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notice because of incapacity and consequently is barred by the noticerequirement. Especially onerous are those situations where the incapac-ity results from the very injury that gives rise to the plaintiffs cause ofaction. Many jurisdictions nonetheless make no exception for this unfor-tunate class," while other jurisdictions, more sensitive to the problemsfaced by such plaintiffs, have grafted exceptions for incapacitated per-sons. 8 Minnesota is among the states that grant exceptional treatmentfor persons incapacitated by the injury, allowing them an extension ofup to ninety days to give notice.49

Despite the ninety-day extension, the problems faced by incapaci-tated plaintiffs in Minnesota have by no means been eradicated. Forexample, the court has held that the extension is available only if theplaintiff was unable to cause another to give notice in his stead .5 Fur-thermore, notice by incapacitated plaintiffs is extended only for thetime of incapacity, with the ninety-day period representing the maxi-mum. 51 In addition, minors, despite legal incapacity, do not fall withinthe ninety-day extension provision.2 Finally, incapacity is a fact ques-

47. See, e.g., City of Birmingham v. Weston, 233 Ala. 563, 567, 172 So. 643, 646 (1937)(failure to file notice against city within required period is not excused because injuredperson was under ten years of age and was mentally and physically unable to give notice);Sherfey v. City of Brazil, 213 Ind. 493, 503, 13 N.E.2d 568, 572 (1938) (fact that claimantis an infant or is under mental or physical disabilities does not relieve him from therequirement of giving timely notice); Workman v. City of Emporia, 200 Kan. 112, 117,434 P.2d 846, 850 (1967) (notice requirement as applied to an incompetent claimant doesnot violate due process).

48. Some state statutes except incapacitated plaintiffs. See, e.g., IOWA CODE ANN. §

613A.5 (West Supp. 1976); ORE. REv. STAT. § 30.275(3) (1953). Some states have judiciallycreated exceptions for incapacitated plaintiffs. See, e.g., Maier v. City of Ketchikan, 403P.2d 34, 37 (Alas. 1965) (plaintiff incapacitated because of electrocution); Burkard v. Cityof Dell Rapids, 76 S.D. 56, 59-60, 72 N.W.2d 308, 309 (1955) (incapacitated claimant notrequired to give timely notice where city was performing a proprietary function).

49. See note 1 supra. Early municipal charters contained similar provisions. See, e.g.,Ray v. City of St. Paul, 44 Minn. 340, 342, 46 N.W. 675, 676 (1890) (to come within thisexception, claimant must prove "that his mental operations were so impaired, eitherthrough his physical condition or as the result of medical treatment required thereby, asto disqualify him from attending to, or giving needful directions in respect to, the notice"during the period of claimed incapacity). The first uniform incapacity exception in Minne-sota was enacted in 1959. See Act of Apr. 24, 1959, ch. 599, § 1, 1959 Minn. Laws 971.

50. See Wibstad v. City of Hopkins, 291 Minn. 206, 209, 190 N.W.2d 125, 127 (1971);cf. Holsman v. Village of Bigfork, 284 Minn. 460, 462, 172 N.W.2d 320, 321-22 (1969)(minor not incapacitated by reason of minority; parents can still give notice).

51. See Wibstad v. City of Hopkins, 291 Minn. 206, 209, 190 N.W.2d 125, 126-27 (1971).52. See Holsman v. Village of Bigfork, 284 Minn. 460, 462, 172 N.W.2d 320, 321-22

(1969) (mother could have given notice); Szroka v. Northwestern Bell Tel. Co., 171 Minn.57, 60-61, 213 N.W. 557, 558 (1927) (incapacity statute only excepted claimants incapaci-tated by the injury and minors are not incapacitated for that reason). The weight ofauthority from other jurisdictions is to the contrary, holding minority to be incapacityexcepted from notice. See, e.g., Wills v. Metz, 89 Ill. App. 2d 334, 337, 231 N.E.2d 628,630 (1967) (minor twenty years old); Fornaro v. Town of Clarkstown, 44 App. Div. 2d 596,

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tion which "manifestly intends a case-by-case determination. '" 5 There-fore, the extension is of little assistance to a person who is incapacitatedfor longer than 270 days, who could have caused notice to be given by athird party, or who is a minor.

The inherent unfairness of a notice provision that can bar an incapaci-tated person from recovery is obvious and the justifications for the no-tice requirement" seem singularly unconvincing in such a case, espe-cially where the municipality's negligence causes a serious injury. Al-though the Minnesota Legislature has taken steps in recent years toalleviate the harshness of the notice requirement in incapacity cases byextending the notice period,55 a more just and comprehensive approachmight be to waive notice for the entire period of incapacity. 6 If thelegislature does not take such action, the court might consider followingthe lead of several other courts, discussed elsewhere in this Note, andhold the notice statute unconstitutional as applied to incapacitatedplaintiffs. 7

B. Waiver and Estoppel

A second possible exception to the notice requirement involves thedoctrines of waiver and estoppel. A waiver is a voluntary relinquishmentof a known right,58 and therefore generally only is available where themunicipal governing body votes to excuse notice for a particular claim-ant.5 9 Equitable estoppel, on the other hand, has been found where theplaintiff has justifiably relied to his detriment upon actions of the mu-nicipality." The two doctrines often are used interchangeably," how-

353 N.Y.S.2d 516 (1974) (child of 13 years presumed not to know his legal rights). Butsee Goncalves v. San Francisco Unified School Dist., 166 Cal. App. 2d 87, 90-91, 332 P.2d713, 715 (1958). See generally 18 E. McQUILLAN, THE LAW OF MUNICIPAL CORPORATIONS§ 53.159 (rev. 3d ed. 1963). At least one court has extended legal incapacity to includeinability to obtain legal representation. See Torres v. Jersey City Medical Center, 140 N.J.Super. 323, 327, 356 A.2d 75, 77 (1976) (construing statute giving court discretion to permitlate notice). Another court has regarded incarceration in a jail as constituting incapacity.See Green v. Department of Corrections, 30 Mich. App. 2d 648, 659, 186 N.W.2d 792, 798,aff'd, 386 Mich. 459, 192 N.W.2d 491 (1971).

53. Hestbeck v. Hennepin County, 297 Minn. 419, 428, 212 N.W.2d 361, 367 (1973).54. See notes 35-39 supra and accompanying text.55. See note 49 supra and accompanying text.56. This could be achieved by adopting a notice statute similar to that in New York

and several other states, giving discretion to the trial judge to forgive late notice whenjustice requires. See notes 197-203 infra and accompanying text.

57. See notes 110-21 infra and accompanying text.58. See, e.g., Alsleben v. Oliver Corp., 254 Minn. 197, 203, 94 N.W.2d 354, 358 (1959)

(waiver is an intentional relinquishment of a known right and the necessary knowledgemay be actual or constructive).

59. See, e.g., Hirth v. Village of Long Prairie, 274 Minn. 76, 78, 143 N.W.2d 205, 207(1966) (can be no waiver of notice except by formal action of the governing body of themunicipality).

60. See, e.g., Brooks v. City of Miami, 161 So. 2d 675, 677 (Fla. Dist. Ct. App. 1964)

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ever, with waiver being found because of conduct of municipal employ-ees, even though the governing body did not excuse notice and a waiverwas not intended.2 In such cases, the technically proper approach wouldbe to apply the estoppel doctrine, although in most of these cases theresult probably would be the same. 3

The waiver and estoppel theories have not been widely accepted innotice cases;"' the courts generally have reasoned that the notice statuteis not susceptible to such judicial exceptions. 5 In recent years, however,a sense of fairness and justice has provoked a trend toward allowing anexception based on these theories. Minnesota case law is illustrative.In Leier v. Twin Cities Area Metropolitan Transit Commission,7 theplaintiff was injured on one of defendant's buses. Two days later, de-fendant's claims adjuster telephoned and advised the plaintiff not tohire an attorney and to let the defendant handle the claim. The plaintiffsubsequently submitted late notice, but the Minnesota Supreme Courtnonetheless held that the defendant was estopped from invoking thedefense of untimely notice.

The Leier decision changed the Minnesota court's previous positionprohibiting estoppel." Leier, however, also appears to have placed some

(city is estopped unless it scrupulously avoids actions which might prejudice claimant ingiving notice); City of Waco v. Thralls, 172 S.W.2d 142, 148 (Tex. Ct. App. 1943) (cityestopped because of its longstanding policy of paying injured employees regardless ofliability, where that policy caused claimant-employee not to give notice).

61. See 31 MINN. L. REv. 751, 752 (1947).62. See, e.g., Rabinowitz v. Town of Bay Harbor Islands, 178 So. 2d 9, 12-13 (Fla. 1965)

(actual notice of the plaintiff's injury by the municipality held to waive notice require-ment); Housewright v. City of LaHarpe, 51 Ill. 2d 357, 362, 282 N.E.2d 437, 442 (1972)(purchase of municipal liability insurance held to waive notice requirement).

63. Compare, e.g., Lindley v. City of Detroit, 131 Mich. 8, 10, 90 N.W. 665, 665-66(1902) with, e.g., Rabinowitz v. Town of Bay Harbor Islands, 178 So. 2d 9, 12-13 (Fla.1965).

64. See, e.g., Fry v. Willamalane Park & Recreation Dist., 4 Ore. App. 575, 584, 481P.2d 648, 653 (1971); Rabe v. Outagamie County, 72 Wis. 2d 492, 501, 241 N.W.2d 428,433 (1976); cf. Aune v. City of Mandan, 167 N.W.2d 754, 759-60 (N.D. 1969) (estoppelalso inapplicable to six-month statute of limitation in notice statute).

65. See, e.g., Heck v. City of Knoxville, 249 Iowa 602, 609, 88 N.W.2d 58, 63 (1958) (thedoctrine of waiver "would virtually nullify the statutory requirement of service upon themunicipality").

66. Compare, e.g., Hirth v. Village of Long Prairie, 274 Minn. 76, 79, 143 N.W.2d 205,208 (1966) (municipality cannot be estopped from asserting improper notice defense be-cause to do so "would be to undermine the purposes of the statute and invade the legisla-tive prerogative") with, e.g., Leier v. Twin City Area Metropolitan Transit Comm'n, 299Minn. 35, 216 N.W.2d 129 (1974) (estoppel doctrine applied in notice case to avoid unjustresult).

67. 299 Minn. 35, 216 N.W.2d 129 (1974).68. Id. at 37-38, 216 N.W.2d at 130.69. See Hirth v. Village of Long Prairie, 274 Minn. 76, 79, 143 N.W.2d 205, 207 (1966)

(only formal action by municipal governing body can constitute waiver or estoppel); Olsonv. City of Virginia, 211 Minn. 64, 67, 300 N.W. 42, 44 (1941) (requirements of notice statute

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limitations on the estoppel theory. Apparently, the acts which form thegrounds for estoppel must occur within the notice period. 0 In addition,the plaintiff probably must actually serve notice upon the defendanteven though late.7 Consequently, while Leier is a relatively liberal deci-sion, it is limited to its "unique fact situation."7" The doctrine of estop-pel is an equitable one, however, and in a case where the equities sorequire, the court might well allow the doctrine to be invoked even whenthe requirements alluded to in Leier have not been met."

C. Substantial Compliance

The most common and significant method of easing the often calami-tous effects of the notice requirement is by the doctrine of substantialcompliance. Courts frequently announce that notice requirements are tobe liberally construed7" and that technically deficient notice which sub-stantially complies with the statutory requirements is sufficient.75 Thisis consistent with the trend away from governmental immunity" and thedoctrine generally is favored as the judicial exception least offensive tothe notice statute. 77

In Minnesota, the concept of substantial compliance has evolved intwo stages. Prior to 1972, the doctrine had been erratically applied andusually was limited to defects in the form and content of notice andmanner of service." Because a function of notice is to expedite munici-

cannot be supplied through waiver or estoppel).70. See Leier v. Twin Cities Area Metropolitan Transit Comm'n, 299 Minn. 35, 37, 216

N.W.2d 129. 130 (1974); Johnson v. City of Chisholm, 222 Minn. 179, 186, 24 N.W.2d 232,236 (1946).

71. See Leier v. Twin Cities Area Metropolitan Transit Comm'n, 299 Minn. 35, 37, 216N.W.2d 129, 130 (1974).

72. Id.73. See generally 3 J. POMEROY, EQUITY JURISPRUDENCE, §§ 802, 805 (4th ed. 1941).74. See, e.g., Grams v. Independent School Dist., 286 Minn. 481, 489, 176 N.W.2d 536,

541 (1970); Brown v. City of Chattanooga, 180 Tenn. 284, 288, 174 S.W.2d 466, 468 (1943);Frankfort Gen. Ins. Co. v. City of Milwaukee, 164 Wis. 77, 80, 159 N.W. 581, 582 (1916).

75. See, e.g., Oakley v. State, 54 Haw. 210, 217, 505 P.2d 1182, 1186 (1973); Galbreathv. City of Indianapolis, 253 Ind. 472, 477-78, 255 N.E.2d 225, 228-29 (1970); Croft v. Gulf& Western Indus., Inc., 12 Ore. App. 507, 514, 506 P.2d 541, 545 (1973).

76. In 1957, Florida became the first jurisdiction to abrogate municipal tort immunity.See Hargrove v. Town of Cocoa Beach, 96 So. 2d 130, 133-34 (Fla. 1957). This trend sincehas steadily gained momentum. See W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 131,at 985-86 (4th ed. 1971). In addition to abrogation of municipal immunity, it has beenlimited in other jurisdictions through exceptions. See note 19 supra.

77. For example, the Minnesota Supreme Court, traditionally strict in its interpretationof the notice statute, applied substantial compliance as early as 1889. See Harder v. Cityof Minneapolis, 40 Minn. 446, 42 N.W. 350 (1889). In contrast, municipal misrepresen-tations and other conduct by municipal defendants was not held to create an estoppeluntil 1974. See note 67 supra and accompanying text.

78. Prior to 1972, substantial compliance had been employed generally only to accomo-date errors or omissions in the description of the time, place, and circumstances of the

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pal investigations," defects in form, content, and manner of servicewhich did not substantially hinder municipal defendants in ascertainingthe time, place, and circumstances of the injury had often, but notuniformly,8° been allowed."' In contrast, defects in timeliness alwaysbarred claims because late notice inevitably delays investigation. 2

Since 1972, a line of cases beginning with Olander v. Sperry & Hutch-inson Co.,"3 has vigorously embraced and expanded the doctrine of sub-stantial compliance in Minnesota. Olander eliminated the prior confu-sion concerning description of the time, place, and circumstances of the

injury. See, e.g., Russell v. City of Minneapolis, 259 Minn. 355, 357, 107 N.W.2d 711, 713(1961) (six- to 15-foot error in description of place of injury permissible); Murphy v. Cityof St. Paul, 130 Minn. 410, 153 N.W. 619 (1915) (time of accident one day in error heldacceptable); Harder v. City of Minneapolis, 40 Minn. 446, 449, 42 N.W. 350, 351 (1889)(one-block error in description of place of injury permissible). But see Hampton v. Cityof Duluth, 140 Minn. 303, 305, 168 N.W. 20, 21 (1918) (25-foot error in description of placeinvalidates notice). Substantial compliance has likewise been held sufficient in describingthe nature of the defect. See, e.g., Piscor v. Village of Hibbing, 169 Minn. 478, 482, 211N.W. 952, 953 (1927) (notice need not be as accurate as pleadings in describing defect).But see Olcott v. City of St. Paul, 91 Minn. 207, 209-10, 97 N.W. 879, 880-81 (1904)(insufficient description of injury-causing defect). Substantial compliance also has beenacceptable to the extent the municipality is not thereby prejudiced. See Brittain v. Cityof Minneapolis, 250 Minn. 376, 383, 84 N.W.2d 646, 651 (1957); Terryll v. City of Fari-bault, 81 Minn. 519, 84 N.W. 458 (1900), af/'d second appeal, 84 Minn. 341, 87 N.W.917 (1901); cf. Louko v. Village of Hibbing, 222 Minn. 463, 466, 25 N.W.2d 234, 235 (1946)(notice as to place sufficient if municipal authorities, through exercise of reasonable dili-gence, are able to discover location).

Substantial compliance, however, has been more grudgingly invoked with regard to themanner of service requirement. See, e.g., Grams v. Independent School Dist., 286 Minn.481, 491, 176 N.W.2d 536, 542 (1970) (service upon superintendent of school districtsufficient); Hebert v. Village of Hibbing, 170 Minn. 211, 212 N.W. 186 (1927) (service ofnotice upon village recorder sufficient); Peterson v. Village of Cokato, 84 Minn. 205, 208,87 N.W. 615, 616-17 (1901) (same). But see McGuire v. Hennessy, 292 Minn. 429, 431,193 N.W.2d 313, 315 (1971) (city attorney not appropriate official upon whom to servenotice); Aronson v. City of St. Paul, 193 Minn. 34, 36, 257 N.W. 662, 663 (1934) (mayornot appropriate official upon whom to serve notice); Doyle v. City of Duluth, 74 Minn.157, 161, 76 N.W. 1029, 1030 (1898) (same). The Minnesota court has also permittedsubstantial compliance with regard to the requirement concerning amount of compensa-tion demanded. See Ackeret v. City of Minneapolis, 129 Minn. 190, 196-97, 151 N.W. 976,978 (1915) (notice sufficient despite failure to specify separate damages of parent arisingfrom injury to child). But see Olson v. City of Virginia, 211 Minn. 64, 66, 300 N.W. 42, 43(1941) (notice with no compensation demanded is void); Bausher v. City of St. Paul, 72Minn. 539, 75 N.W. 745 (1898) (notice must state amount of compensation demanded, aswell as specifying type of relief sought).

79. See note 35 supra and accompanying text.80. See, e.g., Hampton v. City of Duluth, 140 Minn. 303, 305, 168 N.W. 20, 21 (1918)

(25-foot error in description of place of injury invalidates notice).81. See, e.g., Russell v. City of Minneapolis, 259 Minn. 355, 357, 107 N.W.2d 711, 713

(1961) (six- to 15-foot error in description of place of injury is permissible).82. See, e.g., Almich v. Independent School Dist., 291 Minn. 269, 272, 190 N.W.2d 668,

670 (1971); Hirth v. Village of Long Prairie, 274 Minn. 76, 79, 143 N.W.2d 205, 207 (1966).83. 293 Minn. 162, 197 N.W.2d 438 (1972).

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injury. In overruling prior inconsistent opinions, the court held that,except for the elements of timeliness and manner of service, substantialcompliance with the notice provision is sufficient." The court furtherstated that the test of substantial compliance is reasonablenness; if thereasonable diligence of the municipality could have supplied the infor-mation omitted in the notice, the municipality is not thereby prejudicedand the notice is sufficient. 5

In Seifert v. City of Minneapolis," the Olander reasoning was ex-panded to include the manner of service within the substantial compli-ance doctrine. Notice was held valid despite service upon an aldermanat his home after business hours. The court reasoned that notice needonly reach a responsible municipal official who is reasonably likely toplace it before the municipal governing body. 7 In Seifert, the courtimplicitly acknowledged the insignificance of the short delay caused bytechnically improper service when compared to the injustice of barringlegitimate claims."

The precedent of Olander and Seifert, and undoubtedly the interven-ing amendment of the notice requirement from thirty to sixty days,8 'facilitated the extension of substantial compliance to the element oftimeliness. In Jenkins v. Board of Education,N the minor plaintiff wasinjured in a schoolyard fight and was immediately assisted by the prin-cipal and school nurse, who, the following day, filed a detailed reportwith the school administration." Notice submitted six days late washeld substantially to comply with the statute because the delay wasshort in relation to the notice period, the principal was immediatelyaware of the injury, the principal's report was filed the day after theinjury, and the official who received the report from the principal wasthe school district's designated agent for receiving notice. 2

The court in Jenkins observed that the notice statute had beenamended in 1974,'1 subsequent to the plaintiff's injury,' to make actualnotice of the injury by the municipality or its insurer sufficient to satisfythe notice requirement. 5 Although not applying the actual notice

84. Id. at 169-70, 197 N.W.2d at 442.85. Id. at 170, 197 N.W.2d at 442.86. 298 Minn. 35, 213 N.W.2d 605 (1973).87. Id. at 42, 213 N.W.2d at 609.88. See id.89. See note 30 supra and accompanying text.90. 303 Minn. 437, 228 N.W.2d 265 (1975).91. Id. at 438, 228 N.W.2d at 267.92. Id. at 440-41, 228 N.W.2d at 268.93. Id. at 440, 228 N.W.2d at 268.94. The injury to the claimant in Jenkins occurred on January 6, 1972. Id. at 438, 228

N.W.2d at 267.95. See note 33 supra and accompanying text.

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amendment retroactively," the court reasoned that the rationale of theamendment and the policies underlying Olander and Seifert mandatedthat the substantial compliance doctrine be applied to the timelinessrequirement. 7 However, because the municipality in Jenkins did haveactual notice of the injury within the notice period, the case does notresolve the issue whether, absent actual notice, substantial compliancewith the timeliness element is-sufficient. The Jenkins court emphasizedthat, through the accident report, the municipality was put on noticeof the possibility of suit," thus indicating some actual notice is neededfor the application of the substantial compliance doctrine to cases in-volving late notice. This interpretation was reinforced in Kelly v. Cityof Rochester," which also arose prior to the actual notice amendment.In Kelly the court, relying on Jenkins, found substantial compliancedespite late written notice because an accident report had been filedwith the city by a city employee within the notice period, 10 therebygiving the municipality actual notice. Therefore, Jenkins and Kelly bothcan be read as allowing substantial compliance with the timeliness ele-ment only where actual notice is present and thus as having no applica-tion in cases arising after the actual notice amendment went into effect.

In Schaefer v. City of Bloomington,0' however, the court seemed toinvoke the substantial compliance doctrine against a county where noactual or written notice was given within the required notice period.Schaefer may be of only limited applicability, though, because the acci-dent was caused by a facility under the joint control of the county andcity and the city had been given proper notice. The court simply im-puted the city's notice to the county, observing that the county was notthereby prejudiced. 0 2

Consequently, the Minnesota Supreme Court has not yet invokedsubstantial compliance in a situation where the municipality receivedno actual or imputed notice within the required period. The court inrecent years clearly has shown a willingness to invoke the substantialcompliance doctrine when necessary to avoid injustice0 3 and thus prob-ably would be willing to apply the doctrine in any case where the munic-ipality by reasonable diligence could have obtained actual notice withinthe notice period. °'0 However, it seems unlikely that the court would

96. See MINN. STAT. § 645.21 (1976) ("No law shall be construed to be retroactive unlessclearly and manifestly so intended by the legislature.").

97. See 303 Minn. at 439, 228 N.W.2d at 267.98. See id. at 441, 228 N.W.2d at 268-69.99. 304 Minn. 328, 231 N.W.2d 275 (1975).100. Id. at 332, 231 N.W.2d at 277.101. - Minn. __, 244 N.W.2d 45 (1976).102. See id. at -, 244 N.W.2d at 46.103. See notes 83-102 supra and accompanying text.104. Cf. Louko v. Village of Hibbing, 222 Minn. 463, 466, 25 N.W.2d 234, 235 (1946)

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ignore completely the time limitations of the notice statute and invokethe substantial compliance doctrine in a case where no actual or im-puted notice occurs within the notice period or where the municipality,through its own efforts, could not reasonably have obtained notice.05

Thus, the substantial compliance doctrine, while it has alleviated muchof the harshness of the notice statute,'14 does appear to have definitelimitations and in cases where the doctrine is not available, and thegrounds for waiver or estoppel are not present, the only alternativesavailable to the court would be to hold the statute unconstitutional orto deny relief.

D. Constitutional Attack

Another means of mitigating the harshness of the notice requirementis to eliminate completely the requirement of notice on grounds that itis unconstitutional. Constitutional attacks have been based upon dueprocess and equal protection and have been endorsed by four states"°

and a number of commentators.' In addition, the Minnesota SupremeCourt has hinted strongly on several occasions that it will find the re-

(notice as to place of injury is sufficient if municipal authorities, through exercise ofreasonable diligence, are able to discover location).

105. See, e.g., Freeman v. City of Minneapolis, 219 Minn. 202, 205, 17 N.W.2d 364, 365(1945) ("It is not for the courts to pass upon the merits, wisdom and justice of legislation.So long as the legislature does not transgress constitutional limits, matters concerning thehardship and injustice of legislation are for legislative and not judicial consideration.").

106. One remaining area in which the substantial compliance doctrine should apply isthat concerning the problems faced by third-party plaintiffs seeking contribution or in-demnity from municipalities. For example, if a defendant is sued for an injury which hebelieves was the responsibility, in whole or in part, of a municipality, he may wish to jointhe municipality as a third-party defendant. However, the third-party plaintiff may nothave been aware of the injury within the notice period, and if the plaintiff did not givethe municipality notice, the third-party plaintiffs claim against the municipality may bebarred. In Minnesota, the court has consistently held that in such cases the third-partyplaintiff may not join the municipality. See, e.g., American Auto Ins. Co. v. City ofMinneapolis, 259 Minn. 294, 298, 107 N.W.2d 320, 323 (1961). The better view, adoptedby most courts, permits the third-party plaintiff to join the municipality despite impropernotice, since he has no control over whether the municipality receives notice and shouldnot have his rights made contingent upon the plaintiff giving notice. See, e.g., Olsen v.Jones, 209 N.W.2d 64, 67 (Iowa 1974); Cotham v. Board of County Comm'rs, 260 Md. 556,567, 273 A.2d 115, 120-21 (1971); Geiger v. Calumet County, 18 Wis. 2d 151, 156-57, 118N.W.2d 197, 200 (1962); Note, Notice of Claim Under the Municipal Tort Claim Act-TheWatchdog with Plenty of Teeth, 23 DRAKE L. REv. 670, 672 (1974).

107. See Reich v. State Highway Dept., 386 Mich. 617, 194 N.W.2d 700 (1972); Turnerv. Staggs, 89 Nev. 230, 510 P.2d 879, cert. denied, 414 U.S. 1079 (1973); Hunter v. NorthMason High School, 85 Wash. 2d 810, 539 P.2d 845 (1975); O'Neil v. City of Parkersburg,- W. Va. - , 237 S.E.2d 504 (1977).

108. See Note, supra note 39; Note, Noll v. Bozeman: Notice of Claim Provision inMontana, 37 MONT. L. REv. 206 (1976) [hereinafter cited as Notice Provisions inMontana]; Comment, The Constitutionality of California's Public Entity Tort ClaimStatutes, 6 PAc. L.J. 30 (1975).

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quirement constitutionally infirm.' 9 Yet, as the following discussionindicates, most courts have rejected the constitutional attacks, and thereasons for rejection are not entirely without merit.

1. Due Process

The due process clause of the fourteenth amendment is designed, inpart, to ensure that procedural requirements for judicial proceedings arefair."' Several courts have held that notice statutes, as applied to inca-pacitated and minor claimants, violate procedural due process.", Thesecourts have reasoned that incapacitated and minor claimants cannot berequired to do that which is clearly impossible as a condition precedentto suit."' This procedural due process argument, however, is only avail-able for physically and legally incapacitated claimants and therefore isof somewhat limited utility."3 A more fundamental due process attack

109. In Olander v. Sperry & Hutchinson Co., 293 Minn. 162, 197 N.W.2d 438 (1972),the court, after reviewing its decisions finding the notice statute constitutional, noted that"judicial patience should not be confused with judicial impotence, especially where consti-tutional rights may be concerned." Id. at 164-65, 197 N.W.2d at 440. The issue was nextraised in Altendorfer v. Jandric, Inc., 294 Minn. 475, 199 N.W.2d 812 (1972), with thedefendant's contention that it was unconstitutional to require notice to join a municipalityas a third-party defendant. Declining to pass on the constitutionality issue, the courtnonetheless noted that "[ulnlike an issue of purely statutory construction, judicial reso-lution of which becomes engrafted upon the statute by subsequent inaction by the legisla-ture, the issue of the constitutionality of a statute is not so circumscribed." Id. at 481,199 N.W.2d at 816. Most recently, three concurring justices in Jenkins v. Board of Educa-tion, 303 Minn. 437, 442, 228 N.W.2d 265, 269 (1975) declared the notice requirementconstitutionally infirm. The court in Kelly v. City of Rochester, 304 Minn. 328, 330, 231N.W.2d 275, 276 (1975) indicated that future constitutional attack may be on due processgrounds, and in Ebel v. Village of South International Falls, __ Minn. -, -, 244N.W.2d 496, 497 (1976) the court was willing to decide the constitutional issue if reliefwas not obtained on remand.

110. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (procedural due process requiresa "fair process of decisionmaking" when constitutionally affected rights are involved);Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (the opportunity to be heard must begranted "at a meaningful time and in a meaningful manner"); Railroad Comm'n v. PacificGas & Elec. Co., 302 U.S. 388, 393 (1938) ("The right to a fair and open hearing is one ofthe rudiments of fair play assurred to every litigant by the Federal Constitution as aminimal requirement.").

111. See, e.g., Reich v. State Highway Dept., 386 Mich. 617, 622, 194 N.W.2d 700, 701-02 (1972) (alternative holding); City of Tyler v. Ingram, 157 S.W.2d 184, 189 (Tex. Ct.App. 1941), rev'd on other grounds, 164 S.W.2d 516 (Tex. 1942); Cook v. State, 83 Wash.2d 599, 606, 521 P.2d 725, 729 (1974). An important consideration in granting due processrelief is the period of time allowed to give notice. Deprivation of due process becomes lesslikely as the time period for notice increases. Compare Ocampo v. City of Racine, 28 Wis.2d 506, 513, 137 N.W.2d 477, 481 (1965) (120-day notice period not unreasonable) withHughes v. City of Fond du Lac, 73 Wis. 380, 382, 41 N.W. 407, 408 (1889) (five-day noticeperiod unreasonable).

112. See, e.g., Cook v. State, 83 Wash. 2d 599, 604, 521 P.2d 725, 728 (1974).113. See Shearer v. Perry Community School Dist., 236 N.W.2d 688, 692 (Iowa 1975),

where the court held the notice statute did not violate the due process but also observed

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on notice statutes has been made on substantive due process grounds.Under substantive due process principles a statute is invalid if it is

arbitrary, capricious, and unreasonable." 4 In Grubaugh v. City of St.Johns"' the Michigan Supreme Court employed a substantive due pro-cess approach, holding the notice statute unconstitutional because itarbitrarily and unreasonably deprived claimants of a vested propertyright." ' In Grubaugh the claimants were minors,"' but the court's rea-soning has been applied to adults as well."8 The rationale invoked bythe Grubaugh court basically was that under Michigan's municipal tortliability law, liability for municipal negligence arises at the time the tortoccurs, thereby vesting the claimant with an immediate propertyright."9 As a result, the court held that notice is not a condition prece-dent to the municipality's liability'O and that barring a cause of actionfor improper notice was an arbitrary and unreasonable deprivation ofthis property right and therefore violative of due process.''

Although the Minnesota Supreme Court recently suggested it wouldentertain a substantive due process argument like that utilized inGrubaugh,2 1 such an approach may be an inappropriate means for at-tacking the constitutionality of the Minnesota notice statute. A rathertechnical reason for this conclusion is that, in Minnesota, notice appar-ently is a condition precedent to liability,'23 although there is some con-

that "[wie might find some difficulty in upholding § 613A.5 [the Iowa notice statute]against a constitutional challenge if it were shown the condition attached to the right ofaction was so unreasonable as to render compliance almost impossible or to give an injuredperson, in essence, no right of recovery." Thus, virtual exclusion of a remedy seems to benecessary before this due process argument will apply, and that is likely to occur only incases where the claimant is incapacitated and thereby is rendered unable to give notice.

114. See, e.g., Nebbia v. New York, 291 U.S. 502, 537 (1934); Hylen v. Owens, -

Minn. -, -, 251 N.W.2d 858, 861 (1977); cf. Vlandis v. Kline, 412 U.S. 441, 446(1973) (irrebuttable presumption, created by a statute, arbitrarily and unreasonablycaused a deprivation of property in violation of due process).

115. 384 Mich. 165, 180 N.W.2d 778 (1970).116. Id. at 176, 180 N.W.2d at 783-84.117. Id. at 167, 180 N.W.2d at 780.118. See Howell v. Lazaruk, 32 Mich. App. 548, 555, 189 N.W.2d 50, 54 (1971);-O'Neil

v. City of Parkersburg, - W. Va. - , -, 237 S.E.2d 504, 509 (1977). In O'Neil,however, the court based its decision primarily on equal protection grounds, with its dueprocess discussion representing either dictum or an alternative holding. In addition,O'Neil is unique in that the notice statute involved granted only 30 days to give notice,an unusually short time, and that obviously affected the court's decision. See notes 188-89 infra and accompanying text.

119. 384 Mich. at 171-74, 180 N.W.2d at 781-83.120. Id. at 173-75, 180 N.W.2d at 782-84.121. Id.122. See Kelly v. City of Rochester, 304 Minn. 328, 330, 231 N.W.2d 275, 276 (1975).

But see Altendorfer v. Jandric, Inc., 294 Minn. 475, 480-81, 199 N.W.2d 812, 816 (1972)(Grubaugh rationale inconsistent with existing Minnesota law).

123. See, e.g., Holsman v. Village of Bigfork, 284 Minn. 460, 462, 172 N.W.2d 320, 321

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flict on this point."4 Consequently, a vested property right to a cause ofaction against the municipality might not arise in Minnesota until no-tice is given and therefore no due process rights would commence priorto the giving of notice.'25 At least one other court recently applied suchreasoning in holding a notice statute not to be violative of due process.",

A more basic reason for rejecting the substantive due process attackis the recent decline of substantive due process and the concurrent riseof equal protection analysis.' The modern judicial trend has been toanalyze the substantive validity of statutes that create classifications onequal protection grounds,' while limiting due process analysis primar-ily to the issue of procedural safeguards.'29

Although substantive due process has by no means been abandoned,'11

(1969) ("It is settled that the requirement of notice to the municipality, even by an injuredminor, is an essential part of the cause of action.").

124. See White v. Johnson, 272 Minn. 363, 370-71, 137 N.W.2d 674, 679 (1965) (munici-pal duty to exercise due care is breached at time injury occurs and thus its liability accruesnot upon service of notice but rather upon commission of the tort). But see id. at 374, 137N.W.2d at 681 (Otis, J., dissent) (plaintiffs cause of action cannot arise until service ofnotice).

125. See, e.g., Shearer v. Perry Community School Dist., 236 N.W.2d 688, 692-93 (Iowa1975).

126. When interpreting a municipal tort liability statute similar to that in Minnesota,IOWA CODE ANN. § 613A.5 (West Supp. 1977), the Iowa Supreme Court held that the rightof action is coextensive with, and no broader than, the notice requirement. See Shearerv. Perry Community School Dist., 236 N.W.2d 688, 692-93 (Iowa 1975).

127. See, e.g., Developments in the Law-Equal Protection, 82 HARv. L. REv. 1065,1131-32 (1969) [hereinafter cited as Developments] (if the case is an appropriate one forequal protection analysis, substantive due process analysis should not be invoked). Seegenerally Tussman & tenBroek, The Equal Protection of the Laws, 37 CALF. L. REv. 341(1949) (leading article predicting the rise of equal protection analysis to replace substan-tive due process).

128. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 446-55 (1972); McDonald v. Board ofElection Comm'rs, 394 U.S. 802, 806-11 (1969). See generally Tussman & tenBroek, supranote 127.

129. See, e.g., Wisconsin v. Constantineau, 400 U.S. 433, 436-37 (1971); Sniadach v.Family Finance Corp., 395 U.S. 337, 339 (1969). One such procedural issue is access tothe courts. The Supreme Court has held that such access cannot be denied if (1) courtsprovide the only available method of redress, and (2) the rights for which redress is soughtare "basic." Compare United States v. Kras, 409 U.S. 434, 443-46 (1973) (filing fees arevalid as a condition to discharge a voluntary bankruptcy; eliminating debt not a basicright) with Boddie v. Connecticut, 401 U.S. 371, 374-77 (1971) (judicial proceeding is theonly effective means of dissolving a marriage and the associational rights involved inmarriage are constitutionally fundamental). Notice requirements have been held to denyaccess to the courts in violation of due process on this basis under circumstances whereplaintiffs are unable to give notice. See notes 110-13 supra and accompanying text.

130. The application of substantative due process to economic regulation has long beenseverely restricted. See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391-92 (1937);Nebbia v. New York, 291 U.S. 503,531-39 (1934). See generally McCloskey, Economic DueProcess and the Supreme Court: An Exhumation and Reburial, 1962 Sup. CT. REv. 34.However, the incorporation of many of the rights guaranteed in the Bill of Rights into the

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its present scope is not clearly defined, ,31 and equal protection analysisis more specifically applicable to constitutional problems caused bylegislative classifications. 3 Thus, because the most significant constitu-tional question with notice statutes concerns the classification betweenmunicipal and private defendants, as well as between claimants againstsuch defendants, the constitutionality of those statutes most properlyis resolved under the equal protection clause, not through substantivedue process.' 33

2. Equal Protection

a. Background

The equal protection clause of the United States Constitution pro-vides that no state shall "deny to any person within its jurisdiction theequal protection of the laws."' 3' Thus, although legislation need not bedrawn with mathematical precision to ensure absolute equality, personssimilarly situated must be similarly treated and legislation cannot dis-criminate by creating an unconstitutional classification. 3

The United States Supreme Court generally employs one of two testswhen determining the constitutionality of legislative classifications. Inmost situations, a relatively relaxed test is utilized, whereby the classifi-cation is valid so long as it is not arbitrary and bears a reasonablerelation to a legitimate governmental objective. 6 The Court normallyis easily persuaded to find the requisite reasonable relation, declaringin McGowan v. Maryland,'31 for example, that "[tihe constitutional

due process clause of the fourteenth amendment has spawned a new form of substantativedue process affecting state regulation. See, e.g., Gideon v. Wainwright, 372 U.S. 335(1963); Mapp v. Ohio, 367 U.S. 643 (1961). See generally Henkin, "Selective Incorpora-tion" in the Fourteenth Amendment, 73 YALE L.J. 74 (1963).

131. For a discussion of the varying interpretations regarding the scope of modemsubstantive due process, see Ratner, The Function of the Due Process Clause, 116 U. PA.L. Rxv. 1048 (1968).

132. For an early analysis of the superiority of equal protection in reviewing legislativeclassifications, see Railway Express Agency v. New York, 336 U.S. 106, 111-12 (1949)(Jackson, J., concurring).

133. See note 127 supra. See also Boiling v. Sharpe, 347 U.S. 497, 499 (1955) (while dueprocess and equal protection are often interchangeable, discriminations apparently mustbe more unjust to violate due process).

134. U.S. CONST. amend. XIV, § 1.135. See, e.g., San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 24 (1973)

(fourteenth amendment "does not require absolute equality or precisely equal advan-tages"); Williams v. Rhodes, 393 U.S. 23, 30 (1968) (minor variations in the applicationof laws to different groups are not necessarily violative of equal protection); Schwartz v.Talmo, 295 Minn. 356, 362-63, 205 N.W.2d 318, 322-23 (1973) (similarly situated personsmust be similarly treated).

136. See, e.g., Madden v. Kentucky, 309 U.S. 83, 88 (1940); Lindsley v. Natural Car-bonic Gas Co., 220 U.S. 61, 78-79 (1911).

137. 366 U.S. 420 (1961).

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safeguard is offended only if the classification rests on grounds whollyirrelevant to the achievement of the state's objective .... A statutorydiscrimination will not be set aside if any set of facts reasonably maybe conceived to justify it."'

A second, stricter equal protection test is applied if the statutoryclassification involves either a "suspect criteria,""' such as race, 10 alien-age,"' and ancestry,"' or affects a "fundamental interest,' ' 3 such asfirst amendment rights,' voting, "5 the right of criminal appeal,'" inter-state travel,"7 procreation,' and rights of a uniquely private nature.'These classifications are sustained only if a compelling state interest ispresent' 50 and if the statute is well-tailored to effectuate that interest. 5'

This two-tier equal protection formula has drawn criticism as beingtoo rigid and having no middle ground between its minimum scrutinyand strict scrutiny tests.' Some recent decisions have reflected thisview by requiring a "fair and substantial" relation between the classifi-

138. Id. at 425-26.139. "Suspect" criteria include a history of purposeful unequal treatment, a position

of political powerlessness, or such other disabilities as to command extraordinary protec-tion from the political process. E.g., San Antonio Independent School Dist. v. Rodriguez,411 U.S. 1, 28 (1972).

140. See, e.g., McLaughlin v. Florida, 379 U.S. 184 (1964).141. See, e.g., Graham v. Richardson, 403 U.S. 365, 372 (1971).142. See, e.g., Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 420 (1948).143. The test of a fundamental interest is whether the interest is expressly or implicitly

guaranteed by the Constitution and not whether, on balance, the interest has the socialsignificance of another indentified fundamental interest. See, e.g., San Antonio Indepen-dent School Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1972). Moreover, the state carries aheavy burden of justification when a statutory classification affects a fundamental inter-est, including proof that no less drastic means of effectuating its objective exist. See, e.g.,Dunn v. Blumstein, 405 U.S. 330, 343 (1972); Shelton v. Tucker, 364 U.S. 479, 488 (1960).

144. See, e.g., Williams v. Rhodes, 393 U.S. 23, 30-31 (1968).145. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670 (1966).146. See, e.g., Griffin v. Illinois, 351 U.S. 12, 18 (1956).147. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 634 (1969).148. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).149. See Roe v. Wade, 410 U.S. 113, 152-54 (1972) (decided under due process clause).150. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 634 (1969). Only rarely has the Court

found a government interest powerful enough to validate a suspect criteria classification.See Korematsu v. United States, 323 U.S. 214, 216-18 (1944) (national security was theprevailing interest where a congressional act was subject to equal protection analysisunder the fifth amendment); Hirabayashi v. United States, 320 U.S. 81, 100-01 (1943)(same).

151. See, e.g., Developments, supra note 127, at 1122.152. See Dandridge v. Williams, 397 U.S. 471, 519-30 (1970) (Marshall, J., dissenting);

Gunther, The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine ona Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. Rav. 1, 8-18 (1972);Note, A Question of Balance: Statutory Classifications Under the Equal ProtectionClause, 26 STAN. L. REv. 155, 156-60 (1973).

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cation and the legitimate governmental objective.' 53 This intermediatetest is applied to near-suspect categories or rights and has the merit ofrecognizing that some interests, while not rising to the level of funda-mental rights, nonetheless are sufficiently important to deserve moreprotection than provided by the rational basis, minimum scrutinytest. 54

b. Application of the Equal Protection Standards to the Notice

Statute

i. The Strict Scrutiny Test

Under the strict scrutiny test, a classification that affects a"fundamental interest" can only be justified if it furthers a compellingstate interest.'55 If this test was applied to the notice statute, it seemshighly unlikely that the classifications created by the statute could bejustified, since few classifications can be justified under this test 56 andthe justifications for the notice statute are not strong. 57 However, as yetno courts have subjected the notice requirement to the strict scrutinyequal protection standard. It can be argued that access to the courts isan interest fundamental to our system of justice and that therefore anystatute which substantially affects that interest, such as the notice re-quirement, should be required to satisfy the strict scrutiny test.' How-ever, the right of access to the courts has yet to be recognized as afundamental interest for equal protection purposes and, in light of theSupreme Court's reluctance to expand the fundamental interest cate-gory, 59 it is highly unlikely that notice statutes would be subjected tothe strict scrutiny test. Indeed, the emergence of an intermediate equalprotection standard of review appears to have hampered the expansionof the fundamental interest category.6 0 Consequently, the strict scrutinytest probably is not applicable to the notice requirement.

153. See Reed v. Reed, 404 U.S. 71, 76 (1971) (quoting Royster Guano Co. v. Virginia,253 U.S. 412, 415 (1920)).

154. See generally Note, supra note 152.155. See note 150 supra and accompanying text.156. See note 150 supra.157. See notes 164-75 infra and accompanying text.158. See, e.g., Lunday v. Vogelman, - Iowa _ , , 213 N.W.2d 904, 908 (1973)

(Reynoldson, J., dissenting); cf. Boddie v. Connecticut, 401 U.S. 371, 386-89 (1971) (Bren-nan, J., concurring) (access to courts cannot be blocked by legislative classifications). Seegenerally Comment, Equal Protection and State Immunity from Tort Liability, 1973WASH. U.L.Q. 716.

159. A number of interests have been promoted as fundamental but have been held notto be by the United States Supreme Court. See Massachusetts Bd. of Retirement v.Murgia, 427 U.S. 307, 311-12 (1976) (age); San Antonio Independent School Dist. v.Rodriquez, 411 U.S. 1, 29-39 (1972) (education); Lindsey v. Normet, 405 U.S. 56, 73-74(1972) (housing); Dandridge v. Williams, 397 U.S. 471, 485-87 (1970) (welfare benefits).

160. See Gunther, supra note 152, at 26-30.

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ii. The Intermediate, "Fair and Substantial Relation" Test

Although of relatively recent origin,"' the intermediate, fair and sub-stantial relation test has been applied by the Washington SupremeCourt in Hunter v. North Mason High School" 2 to strike down theWashington notice statute. In Hunter, the court analyzed the four pur-ported objectives of the notice requirement-investigation of claims,correction of dangerous municipal facilities, settlement of legitimateclaims, and protection against stale claims-to determine whether theobjectives of the legislative classification are sufficient under the equalprotection standard being invoked." 3 The four justifications for the no-tice statute will be discussed below, in light of Hunter, to determinetheir validity under the intermediate, fair and substantial relation test.

Although the Minnesota Supreme Court has consistently held thatthe opportunity to investigate claims is a legitimate governmentalobjective sufficient to justify the distinctions drawn between municipaland private defendants,'64 the court in Hunter reasoned persuasively tothe contrary. The court doubted that government is any less able toinvestigate accidents than is a private defendant." 5 Not only are munic-ipalities often no larger than their private counterparts, but they alsohave available the trained personnel of police departments and insur-ers." 6 Consequently, the investigation justification is not very convinc-ing.

The justification that notice promotes the detection and removal ofdangerous defects also is weak. Defects cause only a fraction of theinjuries giving rise to negligence suits against municipalities,"7 yet allvictims of municipal negligence must give notice. In addition, noticeonly partially fulfills this justification because information is receivedonly from those tort victims planning to bring suit, not from everyoneinjured by municipal defects."'

The governmental objective of facilitating settlement without litiga-

161. See note 153 supra and accompanying text.162. 85 Wash. 2d 810, 539 P.2d 845 (1975) (en banc).163. See id. at 815-17, 539 P.2d at 849-50.164. See, e.g., Jenkins v. Board of Educ., 303 Minn. 437, 441-42, 228 N.W.2d 265, 269

(1975); Brittain v. City of Minneapolis, 250 Minn. 376, 383, 84 N.W.2d 646, 651 (1957);O'Brien v. City of St. Paul, 116 Minn. 249, 251, 133 N.W. 981, 982 (1911).

165. 85 Wash. 2d at 816, 539 P.2d at 849; cf. Grubaugh v. City of St. Johns, 384 Mich.165, 176, 180 N.W.2d 778, 784 (1970) (same conclusion reached under due process clause).

166. 85 Wash. 2d at 816, 539 P.2d at 849.167. Compare Schaefer v. City of Bloomington, - Minn -... 244 N.W.2d 45,

46 (1976) (bicycle wheel caught between bars of sewer grate) and Seifert v. City of Minne-apolis, 298 Minn. 35, 36, 213 N.W.2d 605, 606 (1973) (plaintiff fell on defective sidewalk)with Kelly v. City of Rochester, 304 Minn. 328, 329, 231 N.W.2d 275, 276 (1975) (injurycaused by diving accident at a municipal swimming pool) and Jenkins v. Board of Educ.,303 Minn. 437, 438, 228 N.W.2d 265, 267 (1975) (injury caused by schoolyard fight).

168. See Note, supra note 39, at 442; Notice Provisions in Montana, supra note 108, at213-14.

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tion, an objective expressed at times by the Minnesota SupremeCourt,' 9 was held to be insufficient by the Washington court inHunter. ' The Hunter court reasoned that settlement without litigationis equally desirable in cases involving private tortfeasors, and thattherefore the imposition of the notice requirement only in cases involv-ing municipal tortfeasors was arbitrary and unreasonable.'' Moreover,it is not at all clear that municipalities take advantage of the earlysettlement opportunities afforded by notice statutes.' The court inHunter also stated that the expected drain on the municipal treasurycould be avoided by municipal liability insurance.' It could have addedthat protection against stale claims is provided by statutes of limita-tions"' and that the notice statute thwarts the legislative intent, funda-mental to the abolition of governmental immunity, to spread the lossfrom municipal negligence among municipal taxpayers rather thanheaping it upon unfortunate victims.'

As the above discussion indicates, the rationales in support of thenotice statute are not strong. Consequently, the Hunter court appearsto be correct in holding the statute violative of the intermediate equalprotection test. The court also seems correct in applying the intermedi-ate, fair and substantial relation test to the notice requirement. Whilethe right of access to the courts for redress of a wrong is not presentlyconsidered a fundamental right, it is sufficiently important within oursystem of justice to merit being subjected to the intermediate, fair andsubstantial relation test.'78 Because the notice statute affects that right,the intermediate test therefore should be applied to the statute. If sucha test was invoked by the Minnesota court, the statute's purportedjustifications probably would be found lacking, especially if the courtrecognized that the legislature has less drastic means available toachieve the purposes of the notice requirement, such as adoption of a

169. See Hirth v. Village of Long Prairie, 274 Minn. 76, 79, 143 N.W.2d 205, 207 (1966);Frasch v. City of New Ulm, 130 Minn. 41, 43, 153 N.W. 121, 122 (1915).

170. See 85 Wash. 2d at 817, 539 P.2d at 850.171. Id.172. See Downing & Tehin, The Constitutional Infirmity of the California Government

Claim Statute, 1 PEPPERDINE L. Rv. 209, 225 (citing 9 Cal. Law Revision Comm'n Rep.55 (1969)).

173. 85 Wash, 2d at 817, 539 P.2d at 849-50.174. See Note, Delay in Notice of Claim Against a Government Agency, 20 CLEV. ST.

L. Rzv. 23, 30 (1970); 23 DRAKE L. Rav. 696, 705 (1974).175. See Graham v. Worthington, 259 Iowa 845, 860-61, 146 N.W.2d 626, 636-37 (1966);

Feezer, Capacity to Bear Loss as a Factor in the Decision of Certain Types of Tort Cases,78 U. PA. L. REv. 805, 815-41 (1930); Smith, Municipal Tort Liability, 48 MICH. L. REv.41, 48-49 (1949).

176. Cf. MINN. CONST. art. 1, § 8 ("Every person is entitled to a certain remedy in thelaws for all injuries or wrongs which he may receive to his person, property or character,and to obtain justice freely and without purchase, completely and without denial,promptly and without delay, conformable to the laws.").

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notice statute granting discretion to the trial court to disregard latenotice where appropriate.177 Recent Minnesota cases indicate a willing-ness to strike down the notice statute'78 and therefore a decision toinvoke this intermediate test to invalidate the statute would not besurprising.

iii. The Minimum Scrutiny, "Rational Basis" Test

The large majority of cases that have considered the validity of noticestatutes under the equal protection clause have applied the minimumscrutiny, rational basis test.' These cases almost invariably hold thatthe justifications for the notice requirement are sufficient to satisfy theminimum scrutiny test,'8 0 although the cases generally are not particu-larly well reasoned. 8' Considering the minimal justification required tosatisfy the rational basis test,8 2 however, these cases are not necessarilyerroneous. Although the justifications for the notice statute are notstrong,'' cumulatively they may be sufficient to satisfy this test. Con-versely, though, a court with a dislike for the notice statute, such as theMinnesota court, 84 could readily strike down the statute under the mini-mum scrutiny test. For example, the Hunter court, in a footnote, indi-cated that even if it had applied the minimum scrutiny test, the justifi-cations for the notice requirement would be inadequate. 5 Similarly, theWest Virginia Supreme Court of Appeals in the recent case of O'Neil v.City of Parkersburg,8 ' applying the minimum scrutiny test, found the

177. See notes 197-204 infra and accompanying text.178. See cases cited in note 109 supra.179. See, e.g., Dias v. Eden Valley Hosp. Dist., 57 Cal. 2d 502, 504, 370 P.2d 334, 335,

20 Cal. Rptr. 630, 631 (1962); Newlan v. State, 96 Idaho 711, 714, 535 P.2d 1348, 1351(1975); Saragusa v. City of Chicago, 63 111. 2d 288, 293, 348 N.E.2d 176, 180 (1976); Lundayv. Vogelman, 213 N.W.2d 904,907 (Iowa 1973); Guarrara v. A.L. Lee Memorial Hosp., 51App. Div. 2d 867, 867, 380 N.Y.S.2d 161, 162 (1975).

180. See note 179 supra. Minnesota also has ample precedent finding notice statutesconstitutional. See, e.g., Olson v. City of Virginia, 211 Minn. 64, 300 N.W. 42 (1941);Frasch v. City of New Ulm, 130 Minn. 41,153 N.W. 121 (1915); Schigley v. City of Waseca,106 Minn. 94, 118 N.W. 259 (1908).

181. For example, the Minnesota case most often relied upon for the proposition thatnotice statutes are constitutional, Olson v. City of Virginia, 211 Minn. 64, 300 N.W. 42(1941), makes only the following cursory statement: "There can be no doubt that thelegislature acted within its constitutional powers in enacting the statute here involved."Id. at 66, 300 N.W. at 43. Similarly, another leading case noted only that governmentalunits need notice to correct dangerous defects and to facilitate settlement and thereforethe notice requirement does not improperly discriminate against similarly situated privatedefendants. See Frasch v. City of New Ulm, 130 Minn. 41, 43-44, 153 N.W. 121, 122 (1915).

182. See notes 137-38 supra and accompanying text.183. See notes 164-75 supra and accompanying text.184. See, e.g., cases cited in note 109 supra.185. See 85 Wash. 2d at 815 n.8, 539 P.2d at 850 n.8.186. - W. Va. -_, 237 S.E.2d 504 (1977).

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justifications for the notice statute to be inadequate.' 7 However, thenotice period involved in O'Neil was an unusually short one' 8 and thisclearly affected the court's decision.'89

As opposed to analyzing the justifications for the notice statute, threecourts have held the statute unconstitutional under the rational basistest by analyzing the purposes of their states' municipal tort liabilitylaws. The Michigan Supreme Court in Reich v. State HighwayDepartment, 9 the Nevada Supreme Court in Turner v. Staggs,'9' andthe West Virginia Supreme Court of Appeals in O'Neil v. City ofParkersburg 9 2 found that the purpose of those laws was to place govern-mental defendants on the same footing with private defendants, and,conversely, to place the victims of negligent municipal and private con-duct in an equal position.'93 These courts found that the classificationscreated between municipal and private tortfeasors on the one hand, andthe victims of their negligence on the other, bear no rational relation tothe legislative objective of equality, and arbitrarily bar suit by thoseinjured through governmental negligence.'94

Whether the reasoning of Reich, Turner, and O'Neil would be validin Minnesota is subject to some doubt. The Minnesota Supreme Courthas stated that the Municipal Tort Liability Act is not intended to placemunicipal defendants on equal footing with private defendants. " The

187. Id. at -,237 S.E.2d at 508. The court in O'Neil reasoned that the justificationsfor the notice statute were equally applicable to private defendants and therefore did notjustify the classification. Id.

188. Id. at __, 237 S.E.2d at 506 (West Virginia notice statute requires notice within30 days of injury).

189. Id. at -, 237 S.E.2d at 508 ("Requiring one so injured to give notice of suchinjury within a short period of thirty days, as a condition precedent to the right to sue, isneither reasonable nor fair.").

190. 386 Mich. 617, 194 N.W.2d 700 (1972).191. 89 Nev. 230, 510 P.2d 879, cert. denied, 414 U.S. 1079 (1973).192. - W. Va. -. , 237 S.E.2d 504 (1977).193. See Reich v. State Highway Dept., 386 Mich. at 623, 194 N.W.2d at 702; Turner

v. Staggs, 89 Nev. at 235, 510 P.2d at 882; O'Neil v. City of Parkersburg, - W. Va. at__ 237 S.E.2d at 508-09.

194. See Reich v. State Highway Dept., 386 Mich. at 623, 194 N.W.2d at 702; Turnerv. Staggs, 89 Nev. at 235, 510 P.2d at 882; O'Neil v. City of Parkersburg, - W. Va. at__ 237 S.E.2d at 508-09.

195. See McCarty v. Village of Nashwauk, 286 Minn. 240, 243-44, 175 N.W.2d 144, 147(1970) ("The argument that in abrogating immunity the legislature intended that govern-mental units should be liable in the same manner as a private individual under likecircumstances ignores the reality that there are many governmental activities which haveno private counterpart. ... ). However, it may be argued that the effect, if not thepurpose, of the Minnesota Municipal Tort Liability Act is to place municipal and privatetortfeasors upon an equal basis. The Minnesota court has stated that in relation to tortsarising from proprietary functions, for which municipalities historically always have beenliable, municipal defendants should have no advantage over private defendants in defend-ing claims. See McCaleb v. Jackson, - Minn. -, - 239 N.W.2d 187, 189-90

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court has reasoned that the exceptions within the Act, whereby govern-mental immunity remains for some activities, evidence a clear intentthat municipalities not be liable in the same manner as private defend-ants.16 Therefore, unless the court changes its position, it appears thatthe arguments accepted in Reich, Turner, and O'Neil are not availablein Minnesota.

In summary, if the Minnesota Supreme Court applied the minimumscrutiny test it might have difficulty justifying holding the notice stat-ute unconstitutional. However, if an intermediate, fair and substantialrelation test was invoked, Hunter provides strong and sound support forholding the statute violative of equal protection. An intermediate testappears to be the most appropriate one for the notice statute, since thestatute affects the important right of access to the courts for redress ofwrongs. Therefore, if the Minnesota court adopted this intermediatetest, it probably would find the notice requirement to be unconstitu-tional.

IV. CONCLUSION

The doctrines of substantial compliance, waiver, and estoppel haveprovided the Minnesota courts with the tools necessary to mitigatemuch of the harshness of the notice requirement. In addition, the exten-sion of time granted incapacitated persons has greatly reduced the in-equities such persons face with the notice rule. The above theories,however, represent a piecemeal approach which still leaves some claim-ants unjustly exposed to the possibility of being denied recovery becauseof the notice requirement and renders the notice statute susceptible toconstitutional attack. For these reasons, a more comprehensive reformof the notice statute is needed, a reform which both protects the legiti-mate interests of the municipalities and prevents claimants from havingtheir recovery barred when improper notice does not prejudice the mu-nicipality. The notice statutes of several other jurisdictions,' 7 most not-ably New York, 98 may serve as a useful guide for the needed reform.

The New York statute, while stating a definite period in which noticemust be given, creates an exception whereby late notice is permitted atthe sound discretion of the trial court.' The New York courts are re-

(1976). Under the Minnesota Municipal Tort Liability Act, the distinction between mu-nicipal liability for governmental as opposed to proprietary interests has been abolished,and therefore the reasoning of McCaleb should apply to all torts giving rise to liabilityunder the Act.

196. McCarty v. Village of Nashwauk, 286 Minn. 240, 243-44, 175 N.W.2d 144, 147(1970).

197. See CAL. GOV'T CODE §§ 911.4, 946.6 (West 1966); N.J. STAT. ANN. § 59:8-.9 (WestSupp. 1977); PA. STAT. ANN. tit. 53, § 5301 (Purdon 1972).

198. N.Y. GEN. MUN. LAW § 50-e (McKinney Cum. Supp. 1976).199. Id. § 50-e(5) provides:

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quired to consider all relevant circumstances in the exercise of thisdiscretion, including actual notice by the municipality or its insurer ofpotential claims, the physical and mental capacity of the claimant,death of the claimant, justifiable reliance upon municipal settlementrepresentations, error in identifying the municipality, and, most signifi-cantly, prejudice to the municipality caused by the delay.2 0° The statuteauthorizes the trial court to correct, supply, or disregard defects in thenotice, unless such action would prejudice the defendant., It also re-quires municipalities to return improperly served notice within thirtydays of service .20 2 An additional provision, not included in the New Yorkstatute, which should be considered in Minnesota is that any otherlegitimate reason, not prejudicial to the municipality, will excuse latenotice .201

The adoption by the Minnesota Legislature of a notice statute similarto that in New York and several other states would effectively eliminate

Upon application, the court, in its discretion, may extend the time to serve anotice of claim specified in paragraph (a) of subdivision one.

The extension shall not exceed the time limited for the commencement of anaction by the claimant against the public corporation. In determining whetherto grant the extension, the court shall consider, in particular, whether the publiccorporation or its attorney or its insurance carrier acquired actual knowledge ofthe essential facts constituting the claim within the time specified in subdivisionone or within a reasonable time thereafter. The court shall also consider all otherrelevant facts and circumstances, including: whether the claimant was an in-fant, or mentally or physically incapacitated, or died before the time limited forservice of the notice of claim; whether the claimant failed to serve a timelynotice of claim by reason of his justifiable reliance upon settlement representa-tions made by an authorized representative of the public corporation or itsinsurance carrier; whether the claimant in serving a notice of claim made anexcusable error concerning the identity of the public corporation against whichthe claim should be asserted; and whether the delay in serving the notice ofclaim substantially prejudiced the public corporation in maintaining its defenseon the merits.

An application for leave to serve a late notice shall not be denied on theground that it was made after commencement of an action against the publiccorporation.

200. Id. One factor, which the New York statute does not include, but which arguablyshould be central to the decision to permit the giving of late notice, is whether in theparticular case the purposes of the notice statute would be served by not allowing latenotice.

201. Id. § 50-e(6).202. Notice must be returned by the municipality, specifying the defect in the manner

of service, unless the municipality demands that the claimant or any other person inter-ested in the claim be examined in regard to the claim. Id. § 50-e(3)(c). The claimant mustproperly serve notice within ten days after receipt of the returned notice. Id. § 50-e(3)(d).

203. The Pennsylvania notice statute is illustrative. The statute provides simply thatthe claimant may request "leave of court to enter such action upon a showing of a reason-able excuse for such failure to file said notice. "PA. STAT. ANN. tit. 53, § 5301 (Purdon1972).

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118 WILLIAM MITCHELL LAW REVIEW [Vol. 4

the inequities created by the present Minnesota notice statute. In addi-tion, the threat that the statute will be held unconstitutional would besubstantially lessened, thereby retaining legislative control over the lia-bility of municipalities. Moreover, such a revision of the present statuteshould significantly reduce the large amount of litigation that the noticestatute has caused over the years. In light of the Minnesota Legislature'sprogressive liberalization of the notice statute in the recent past, 04 thepossibility that it would approve a statute similar to New York's is notunrealistic.

204. See notes 30-34 supra and accompanying text.

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